Unequal Treatment Under Rules for Those Similarly Situated
19 October 2007
By Gene Quinn, Patent Attorney & PLI Blog Editor
While the comment below asks "what if" the temporary flagging and removal from an examiner's docket caused problems that could affect one applicant who has a similar or overlapping technology, while not affecting the other. While this certainly could be a problem, what if competitor 1 receives a first office action on the merits before November 1, 2007, thereby not needing to comply with the new claims and Examination Support Document rules, and the other competitor does not receive such an action before November 1, 2007?
It seems to me that this would a situation where similarly situated persons are being treated differently under the law. I refuse to believe that a different filing date by a few days or administrative delay could legitimately be argued to make the applicants not similarly situationed. This would certainly raises fairness issues and maybe even constitutional questions associated with equal protection. I won't say that this is an equal protection problem for certain, Constitutional Law was a long time ago and since then I have quite willingly limited my knowledge of the Constitution to the Intellectual Property Clause, the Bill of Rights, and in the repeal of prohibition, but that one is a different story, for another time.
What follows below comes straight from an Anonymous poster to this blog. I wanted to make sure to highlight this comment with its own post because I think it very well illustrates the arbitrary and capricious aspects of these new rules. Everyone is going to be affected by these new rules! I think the trouble with getting any kind of grass roots movement here is that no one will know for sure whether they have received the short end of the stick until well after the November 1, 2007 effective date. That should not mean that you sit this round out. It should mean that we all have a clear and vested interest that can be easily understood and articulated.
